Articles Posted in Product Defects


The time to move for summary judgement is a critical stage in any litigation proceeding. Both or either party can request that the court find that the evidence developed through discovery makes it impossible for one party to win on their claims or defenses, and judgment should be entered in favor of the requesting party. In preparing summary judgment motions, plaintiffs must utilize all of the evidence available to them at that point to convince the judge that no genuine issues of material fact exist. The judge considering the motion will not independently evaluate the record to determine which evidence exists to support a party’s position. Instead, the party must present such evidence through its motion. In a recent case before the Fourth Circuit, a personal injury plaintiff lost on partial summary judgment because she failed to present all of the evidence available to her in her briefing. For reasons discussed below, the Fourth Circuit rejected her efforts to introduce new evidence at a later date.

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operation-blade-1-1550186When any company sets out to provide a product to the public, it presumably does so with the intent that the product be as safe as possible. Businesses want to ensure that their customers will have a good experience with the items that they sell, and making sure that a product is safe for use is a necessary component of that good experience. Sometimes, however, products unexpectedly cause side effects, or have malfunctions that can make them dangerous to use. When this occurs, and an individual is injured by the product, he or she may have a personal injury claim based on product design defects or a failure to warn of known issues with the product. A recent case before the Fourth Circuit Court of Appeals considered these two claims with a plaintiff severely injured as a result of a medical product.

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gearsIn complicated accident cases involving heavily disputed facts, parties often rely on expert testimony to establish the bases for their claims. Experts can help provide background and context on issues such as evidence at an accident scene, faulty mechanics, or user error. Experts also help to explain complicated concepts and arguments in easily digested formats so that juries can understand what is going on. At the same time, since they wield such authority, experts can have an undue influence on a case, and a jury may give their testimony more weight or credibility than the expert’s testimony may actually merit. For these reasons, courts take the inclusion of expert testimony very carefully, and they generally only allow experts to testify if they are truly qualified to do so and have reliable testimony to offer.

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gold convertibleWhen companies manufacture an item for public consumption, they generally owe a duty to consumers to ensure that the item is safe for the purposes for which the public intended to use it. However, this does not mean that the product must be safe for every possible use that can be conceived. For instance, if a person decides to use a bed sheet as a parachute while skydiving, and it does not live up to the task, the bed sheet manufacturer will not be responsible for any injuries that might have occurred, unless it was explicitly advertising its bed sheet as a backup parachute. It did not intend for the bed sheet to be used in that way and can’t be held responsible for an individual’s decision to do so.  A recent case out of Virginia looks at how this doctrine applies to car manufacturers and when they can be held liable for designing and manufacturing a car in a way that allegedly causes injuries to a driver.

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One of the first steps that any plaintiff must take when bringing a personal injury claim is to determine where the lawsuit should be filed.  Many personal injury claims arise between two individuals, such as two drivers of vehicles that collide.  In these situations, it is relatively easy to determine the correct court, since both individuals will likely live in the same state.  However, sometimes personal injury and product liability claims involve large corporations. While these corporations may have products that reach the state where the injury occurs, they may not have offices or factories in that state, or they may be incorporated in a different state.  In these circumstances, plaintiffs must consider, with the help of their attorney, more complicated personal jurisdiction requirements, which determine where a lawsuit can properly be brought.  A recent case before the Supreme Court of Appeals for West Virginia took a look at a victim’s efforts to bring a lawsuit against Ford Motor Company in the state.

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chemicals-1240490-1279x859DuPont Chemical has been in the news recently, and not for good reasons.  The chemical and manufacturing giant is currently litigating several class action personal injury cases related to its alleged dumping of toxic chemicals into the water that West Virginians and Ohioans drank on a regular basis.  In a case filed in the Southern District of West Virginia, John Wolf is one of several thousand plaintiffs, 3,535 to be exact, who is seeking compensation for injuries that he alleges that he suffered as a result of drinking water contaminated by DuPont.  Mr. Wolf’s case, which is set to go to trial in March, could have significant ramifications for other plaintiffs seeking compensation from DuPont in courts across West Virginia and Ohio.

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West Virginia’s strict liability system in products liability cases is intended to hold manufacturers responsible for any defective products that they produce, regardless of whether the company knew that the product wasn’t up to snuff at the time it left the warehouse. As a recent case out of the U.S. District Court for the Southern District of West Virginia makes clear, these cases often come down to a battle of experts. They focus largely on if, when, and how the particular product became defective.

scalesO’Bryan sued Synthes, Inc., alleging a number of products liability claims stemming from a medical device designed and produced by the company. It all stemmed from an April 2011 accident in which she fractured her leg by falling down a flight of stairs. After consulting with a doctor, she attempted to let the fracture heal on its own. O’Bryan wore a brace on the leg for two or three months and completed physical therapy, but the fibula fracture didn’t mend. An orthopedic surgeon in October 2011 performed surgery on O’Bryan to place a 1-mm-thick Synthes plate into her leg.

The plate was designed and produced by Synthes, Inc. A package containing the plate included a number of warnings, indicating among other things that it “cannot withstand activity levels and/or loads equal to those placed on normal healthy bone.” The warning explained that the device was designed to hold a fracture in place until it healed, and it said that the fixture could break due to fatigue if the healing didn’t happen in a timely process. It further instructed medical professionals using the device as follows: “The patient should understand that a metallic implant is not as strong as a normal, healthy bone can and will fracture under normal weight bearing or load-bearing in the absence of complete bone healing.”

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ignition-key-92360-m.jpgA West Virginia man is suing General Motors LLC (GM) and a GM car dealer, claiming that GM was responsible for a faulty ignition switch in his pregnant wife’s Chevy Cobalt, leading to a collision that resulted in her death.

Jason Vest filed a claim in Mercer Circuit Court against both HM and Delphi Automotive PLC, stating that he had purchased the Chevy Cobalt in 2006, and one month later, his wife was killed after she lost control of the car, ran a stop sign, and was struck by a tractor trailer. The Chevy Cobalt’s airbags failed to deploy. Vest claimed that the faulty ignition switch was the cause of the collision, and that GM had been aware of this defect since 2001. Vest’s claims include products liability, negligence, breach of implied warranty of merchantability, fraud, fraudulent misrepresentation, fraudulent concealment, and violations of the West Virginia Consumer Credit and Protection Act. He seeks damages that include loss of income, funeral expenses, medical expenses, and punitive damages.

GM and several other car manufacturers have been in the spotlight recently due to their multiple vehicle recalls over the past year. GM alone has recalled at least 13.8 million vehicles sold across the United States. This included a recall of 500 new pickup trucks and SUVs due to an airbag malfunction and 2.6 million vehicles due to a faulty ignition that led to 13 deaths and counting.
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house-demolition-1424903-m.jpgRecently, the West Virginia Supreme Court affirmed that two homeowners could not sue the construction companies that built their house for negligence due to an existing arbitration clause in their contract.

Back in March 2009, Wayne and Joyce Kirby entered into a written agreement with Bastian Homes to have a new house constructed in Fairmont. This agreement included an arbitration clause. Bastian Homes then subcontracted with Ed Dwire of Dwire Plumbing to provide plumbing services to the house. However, before construction was completed, there was a water leak that allegedly caused damage to significant portions, resulting in a delay lasting as long as 10 months. The Kirbys then sued Bastian Homes and Dwire Plumbing jointly for negligence, and Bastian Homes moved to dismiss the complaint due to the arbitration clause, which required either party to submit the matter to arbitration rather than file in court. The Kirbys responded that because the arbitration clause was never “bargained for,” it was invalid. Wayne Kirby noted that he had objected to the clause at the time of contract, but was told not to worry because Bastian Homes was bonded, and that the company would correct or repair any defects in workmanship if they were discovered within a year of construction.

Despite this, the trial court judge found that the Kirbys still needed to go through the arbitration process and the West Virginia Supreme Court affirmed. The Court considered the respective bargaining positions of the Kirbys and Bastian Homes, and also the contract itself. The Court noted that as long as the contract as a whole was supported by an offer, acceptance, and sufficient consideration, the entire contract was valid and it did not matter if the arbitration clause was not independently bargained for. Since there was valid offer, acceptance, and consideration, the contract between the Kirbys and Bastian Homes was valid.

water-drop-2-1387351-m.jpgFollowing the chemical spill into the Elk River, several lawsuits were filed against not only Freedom Industries, Inc., the chemical company responsible, but also West Virginia American Water Company. Overall, 20 lawsuits have been filed against the water company, with the injured parties claiming that it did not do enough to ensure that their drinking water was safe to use.

American Water Company’s intake facility is just a little over a mile downstream from the Freedom Industries plant that leaked 10,000 gallons of MCHM last month. Although officials have declared the water, used by 300,000 customers, to be safe, many residents are reluctant to do so.

While most of the lawsuits filed against the water company were on behalf of individuals, a few entities were injured parties as well. These included the Town of Buffalo and Desimone Hospitality Services, LLC. The Town of Buffalo sought “significant” amounts of overtime compensation that it had to pay to public safety officials, as well as income and taxes lost from businesses forced to close due to the crisis. Meanwhile, Desimone Hospitality Services restaurants claim to have lost business confidence and goodwill, as well as an undetermined amount of income.
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